Why Probate Litigation?
When a will is probated, the probate court validates the will and appoints an executor or personal representative to administer the decedent’s estate. From there, the probate court oversees the executor as they pay taxes and other expenses, distributing what is left of the estate to the heirs.
Generally, the matters handled during the probate process through the court are not contested. These matters include paying the decedent’s taxes and debts, selling property, and taking what is left after all debts are paid and distributing it among the heirs. However, a legal contest occasionally arises over the decedent’s mental capacity at the time the will was drafted, leading to probate litigation.
What is Probate Litigation?
It can be a will contest or some other court battle over someone who is still living. For instance, such a contest may be regarding powers of attorney, living wills, guardianship, or conservatorship.
Examples of probate litigation include:
- Challenging over the validity of a decedent’s will;
- A lawsuit regarding the wording contained in a will or trust;
- A contest over a disinherited adult child;
- A lawsuit to end a trust because it is no longer practical;
- A contest over the appointment of a specific guardian;
- A lawsuit to modify or restructure a trust; and
- A lawsuit filed by beneficiaries against an executor or personal representative because they failed in their fiduciary duties
What increases the chances of an estate being litigated? There are some factors that increase the risk of probate litigation: second and subsequent marriages, blended families, dysfunctional families, sibling rivalry, and individuals who have married multiple times without a prenuptial agreement.
Avoiding Litigation with Prenuptial agreement
The best way to avoid probate litigation after someone’s death is to have a prenuptial or postnuptial agreement. The reason is that a lot of people mistakenly believe that the separate assets they bring into marriage shall remain separate property when in fact, they combined separate property with marital assets, thereby converting them to marital property.
Preferably, before a couple marries, they draw up a prenuptial agreement that clearly states which assets shall remain separate upon death, so the surviving family members aren’t left to argue over these matters after their loved one passes away.
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